"One nation, under [surveillance], with liberty and justice for all."

Today's NY Times on the FISA legislation signed into law less than two weeks ago: Concerns Raised on Wider Spying Under New Law:

Broad new surveillance powers approved by Congress this month could allow the Bush administration to conduct spy operations that go well beyond wiretapping to include -- without court approval -- certain types of physical searches on American soil and the collection of Americans' business records, Democratic Congressional officials and other experts said.

Administration officials acknowledged that they had heard such concerns from Democrats in Congress recently, and that there was a continuing debate over the meaning of the legislative language. But they said the Democrats were simply raising theoretical questions based on a harsh interpretation of the legislation.

They also emphasized that there would be strict rules in place to minimize the extent to which Americans would be caught up in the surveillance.

Once again, Congress adopts something and reads it later. What are we paying you guys for?


I'm not holding my breath, but I've got clients who are citizens of Canada, Egypt, Jordan, Mexico, and other countries. What happens when I call their families? Am I presumptively being surveilled because my foreign clients, defendants in a federal criminal case, require me to talk with their families about their cases?

The adoption of the August 2007 FISA amendments were pushed through Congress in typical Administration scare tactic style, just like the USA PATRIOT Act. Responding to a an alarmist push from the White House claiming some unknown and undefined threat to the United States, Congress approved amendments to the Foreign Intelligence Surveillance Act (FISA), the "Protect America Act of 2007," with a sunset section for 180 days, that permits surveillance of any telephone call with one end of the call outside of the United States, increasing executive power and reducing judicial oversight over warrants.

The best source I have found for information about FISA is the Electronic Privacy Information Center, www.epic.org, which has a section devoted to FISA surveillance, with a history of national security wiretaps, going back to the 1972 case of United States v. United States District Court.

The NY Times two weeks ago said that the Protect America Act of 2007 broadened the law beyond the need proffered by the White House.

President Bush signed into law on Sunday legislation that broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages of American citizens without warrants.

Congressional aides and others familiar with the details of the law said that its impact went far beyond the small fixes that administration officials had said were needed to gather information about foreign terrorists. They said seemingly subtle changes in legislative language would sharply alter the legal limits on the government's ability to monitor millions of phone calls and e-mail messages going in and out of the United States.

They also said that the new law for the first time provided a legal framework for much of the surveillance without warrants that was being conducted in secret by the National Security Agency and outside the Foreign Intelligence Surveillance Act, the 1978 law that is supposed to regulate the way the government can listen to the private communications of American citizens.

"This more or less legalizes the N.S.A. program," said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

The White House, of course, denied it:

Today's New York Times story by James Risen makes the unfounded claim that new FISA legislation has "broadly expanded the government's authority to eavesdrop on the international telephone calls and e-mail messages American citizens without warrants." This is highly misleading.

Revolutionary changes in technology have occurred since FISA was enacted in 1978, and those changes have resulted in FISA--contrary to the intent of Congress in 1978--often requiring the government to get a court order to collect information on foreign terrorists and other foreign targets located overseas. The new law makes clear that a court order is not required to conduct surveillance of foreign intelligence targets located overseas.

But under FISA, court approval is required for the government to target an individual located in the United States, and nothing in the new law changes that.

Under the Protect America Act, the so-called judicial approval can be obtained after the fact, if the circumstances do not permit applying in advance, something likely to become a self-fulfilling prophecy. When an application is filed, it is under seal and in secret, so the only time anyone would know is if a legal challenge some how unearthed the papers.

Those lawyers representing terrorism defendants that filed the case the Sixth Circuit reversed on July 6th who had no standing?  Don't they now have standing if any call out of or into the United States is subject to monitoring as a matter of course?

And who really thinks that it won't be re-upped in 180 days? The same "there hasn't been another 9/11" will be used as justification. I predict it will be readopted with a year or longer sunset clause, to at least get past the Bush Presidency, without any proof that any plot was thwarted or alleged terrorist arrested, unless, of course, they can arrest somebody and keep him or her detained indefinitely without trial or habeas to prove the truth of the allegations.

[cross-posted to www.FourthAmendment.com]

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    Pledge (none / 0) (#1)
    by nellieh on Mon Aug 20, 2007 at 07:32:42 AM EST
    At this time, the Pledge "one Nation under surveilance" is more Constitutional than " under God."

    And more accurate....n/t (none / 0) (#2)
    by kdog on Mon Aug 20, 2007 at 09:44:32 AM EST
    London (none / 0) (#3)
    by tnthorpe on Mon Aug 20, 2007 at 02:46:51 PM EST
    has a network of cameras that cover a huge part of the city's public spaces. Estimates put the number of times a person is photographed over a day spent in central London at something over 300. Liberty is both freedom to do things and freedom from intrusions into one's life. The surveillance culture is one more step toward passive consumership instead of active citizenship, one more step away from democratic urban space toward what Bruno Latour calls the "oligopticon." People have a right to the city that ought to include not being tracked by their elected officials and security apparatus.

    And the spin is on in full force. (none / 0) (#4)
    by Edger on Mon Aug 20, 2007 at 05:45:57 PM EST
    On Friday Notes from the Lounge outed Brian Faughnan and Micheal Goldfarb and the Weekly Standard's lies.

    The FISA Amendment: Totally Defensible If You Lie About It

    I started noticing this last week, but the level of bald-faced mendacity indulged in by defenders of the recent FISA amendment is sort of gobsmacking, which is saying quite a bit given how little I expect of GOP dead-enders at this point.  Consider this, from the Weekly Standard's blog:
    One of the last things Congress did before adjourning for the August recess was to pass the Protect America Act, which clarifies the authority of the Executive Branch to intercept without a court order the communications of suspected terrorists who are foreign nationals, located abroad. It represents nothing more than the preservation of the original effect of FISA, updated to reflect changing technology. The legislation lasts just 6 months, which means Congress must quickly consider a longer extension.

    Emphasis mine.  This is not only untrue, but plainly untrue to anyone who has been paying any attention to this issue, since the central contested difference between the Democratic and Republican amendments was the way the latter went beyond "preservation" of the traditional ability to eavesdrop on foreign-to-foreign communication and licensed warrantless surveillance of communication between U.S. persons and targets abroad.  We know that this was not part of "the original effect of FISA" because FISA was passed precisely to ensure judicial oversight of such surveillance in the wake of the Church Committee's exposure of illegal intercept programs like Project SHAMROCK and HT Lingual.

    You might want to find another way of communicating with your clients, LNILR....

    The New FISA Trust Al Gonzales Cave-In (none / 0) (#5)
    by womanwarrior on Tue Aug 21, 2007 at 12:02:34 AM EST
    Can you tell me where I can find a list of who voted for this so that I can work on having each and every one of them, Democrat and Republican, voted out of office?  

    House and Senate Records (none / 0) (#6)
    by tnthorpe on Tue Aug 21, 2007 at 03:02:00 AM EST
    This link takes you to the House:

    This link takes you to the Senate:
    http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=110&sessio n=1&vote=00309

    Let's unseat those who chose expedience and vacation time over the Constitution!


    Here are (none / 0) (#7)
    by Edger on Tue Aug 21, 2007 at 04:40:38 AM EST
    some ways to make links like this one.

    Thanks (5.00 / 1) (#8)
    by tnthorpe on Tue Aug 21, 2007 at 02:16:35 PM EST
    for the assist here. Hopefully my posts will look less messy now.

    You're welcome. (none / 0) (#9)
    by Edger on Tue Aug 21, 2007 at 09:46:30 PM EST
    Anytime :-)